Delhi District Court
Sh. Har Pal Singh vs Sh. Bhairu Ram Yadav (Driver) on 27 April, 2012
1
IN THE COURT OF MS.POONAM CHAUDHARY
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.: 416/11
DATE OF INSTITUTION:4.9.2009
1. Sh. Har Pal Singh
S/o Sh. Bir Singh
R/o A246, Budh Vihar Colony
Taj Pur Pahari, Badar Pur, New Delhi ............... Petitioner.
Versus
1. Sh. Bhairu Ram Yadav (Driver)
S/o Sh. Suja Ram Yadav
R/o House No. 113, Hari Singh Ki Dhani,
Achrol, Tehsil Amer,
District Jaipur, Rajasthan
2. Sh. Madan Lal Yadav, (Owner)
S/o Sh. Banshi Dhar Yadav,
R/o 94, Achrol Lalwati Dhani
Tehsil Amer, District Jaipur, Rajasthan.
3. The United India Insurance Company (Insurer)
R/o Sahara Chambers Tonk Road,
District Jaipur, Rajasthan
................Respondents
Final Arguments heard on : 17.04.2012
Award reserved for : 27.04.2012
Date of Award : 27.04.2012
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AWARD
1. Vide this judgment cum award I proceed to decide the petition U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) filed by the petitioner, for grant of compensation in a road accident.
2. Briefly stated the facts of the case giving rise to the petition are that on 13.4.2009 at about 10.00 PM the petitioner had loaded the stone on his truck bearing no. HR38L3034 from Nijam Pur, Rajasthan to Faridabad alongwith Sh. Vikram @ Vikky. It was further stated that when the said truck reached Hero Honda Chowk, Nijam Pur, Near Raqwa Road, Narnaul, Mahender Garh, Rajasthan a truck bearing no. RJ142G4762 LP ten tyre being driven by respondent no. 1 in a rash and negligent manner came from wrong side and hit the truck of petitioner causing serious injuries to him. It was further alleged that after the accident petitioner was taken to General hospital Narnaul where he was treated and discharged on 17.4.2009. It was further stated that the petitioner could not perform his work and was also unable to walk and was readmitted in various hospitals at New Delhi and incurred huge amount on treatment from private doctor/various hospitals.
3. It was further stated that the petitioner was 49 years of age at the tme of accident and was working as driver and was earning Rs. 10,000/ per 3 month.
4. It was further stated that the accident occurred due to rash and negligent driving of respondent no. 1 and the vehicle was owned by respondent no. 2 and insured with respondent no. 3 thus all the respondents were jointly and severally liable to pay compensation. It was prayed that Rs. 5,00,000/ be awarded as compensation with interest @ 18% per annum from the date of accident till realization and interim award be also passed under Section 140 of the Act.
5. Respondents no. 1 and 2 did not appear despite service by publication and were proceeded exparte.
6. Respondent no. 3 contested the petition denying all the averments made in the petition. It was also alleged that petitioner sustained injuries while working under his employer as such he was entitled to get compensation under the Workman's Compensation Act. It was however admitted that the vehicle no. RJ142G4762 was insured with respondent no. 3 in the name respondent no. 2 on the date of accident but liability of respondent no 3 was subject to the terms and conditions of the policy. It was denied that respondent no. 3 was liable.
7. On the pleadings of the parties, the following issues were framed:
1. Whether the petitioner sustained injuries in the accident which occurred on 13.04.2009 near Raqwa Nizam Pur Road, Narnaul Mahendergarh, due to rash and negligent driving of 4 vehicle no. RJ142G4762 by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
8. In support of their claim petitioner examined himself as PW1, he tendered his evidence in examination in chief by affidavit Ex. PW1/X reiterating therein the contents of the petition. He proved the certified copies of the criminal record Ex. PW1/1 to PW1/7(colly) i.e. the FIR no, 126/09 lodged under Section 279/337 IPC against the driver of the offending vehicle no. RJ142G4762 Ex. PW1/1, charge framed against respondent no. 1 under Section 279/337/338 IPC Ex. PW1/2, insurance policy of the offending vehicle Ex. PW1/3, MLC of the petitioner Ex. PW1/4, site plan Ex. PW1/5, driving licence of respondent no. 1 Ex. PW1/6, Mechanical inspection report of the offending vehicle Ex. PW1/7, his driving licence Ex. PW1/8. In his crossexamination he stated that the number of offending vehicle was RJ142G4762 and it was coming from the opposite side. He also stated that it was a single road width of which was 2025 feet. He also testified that the speed of the offending vehicle was about 4045 Km per hour and he was driving at the speed of 2025 Km per hour. He further stated that one vehicle was standing stationary on 5 the left side of road. He denied that he did not see the offending vehicle coming from the opposite direction as a result there was a head on collision. He denied that the accident occurred due to his negligence. He further stated that he had not filed any bills. He denied that he had not incurred Rs. 40,000/ on his treatment. He denied that he could not work for six months. He denied that the cost of his future treatment was not Rs. 50,000/. He stated that he was not advised future treatment by a doctor neither he filed any certificate in this regard. He denied that he was not earning Rs. 10,000/ per month as driver by profession. He also deposed that he had not filed any document pertaining his leg being plastered neither he had filed record of hospitalization. Petitioner thereafter closed his evidence.
9. On the other hand respondent no. 3 examined Sh. Vikas Negi, Administrative Officer of the insurance company who tendered his evidence by affidavit. He proved the insurance policy Ex. R3W1/1. He also stated that the notice under Order 12 Rule 8 CPC was sent by their counsel to the insured which was proved as Ex. R3W1/2 to produce the permit and fitness, the postal receipts were proved as Ex.R3W1/3. He further stated that the insurance company did not receive the copy of the permit from the insured despite notice sent to him nor IO has seized the same. Thus owner was plying the truck without permit and it was violation 6 of conditions of policy as such respondent no. 3 was not liable to indemnify the insured or pay compensation to petitioner. His testimony has gone unchallenged.
10.I have heard the Ld. counsel for the parties and perused the record. ISSUE NO. 1
11.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that the accident was caused due to rash and negligent driving of the driver of offending vehicle.
12. To determine the negligence of driver of offending vehicle it has been held in 2009 ACJ 287 National Insurance Company Ltd. V/s Pushpa Rana & Another as follows:
"Negligenceevidenceadmissibility of document certified copy of criminal court, such as, FIR, recovery memo and mechanical inspection report of vehicle are documents of sufficient proof to reach the conclusion that driver was negligent proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. "
13.Petitioner stated on oath that he suffered injuries in an accident caused by vehicle no. RJ142G4762 being driven in a rash and negligent manner by its driver respondent no. 1. In his crossexamination on behalf of respondent no. 3 he denied that the accident occurred due to his negligence as he did not see the offending vehicle coming from the 7 opposite direction and led to head on collusion on a single road. Moreover respondents no. 1 and 2 did not lead evidence to bring on record any different version of accident. It was for respondent no. 1 and 2 to explain why FIR was registered against respondent no. 1 with regard to the accident and allegations against them. Thus in view of certified copies of FIR and charge framed against respondent no. 1 it has been proved that he was accused in the criminal case and caused the accident due to rash and negligent driving of the offending vehicle no. RJ142G4762 causing grievous injuries to petitioner. Issue no. 1 is accordingly decided in favour of petitioner and against the respondents. ISSUE NO. 2
14. As issue no. 1 has been decided in favour of the petitioner, he is entitled to compensation.
COMPENSATION MEDICINES AND MEDICAL TREATMENT
15. In this regard the petitioner had stated that he incurred Rs. 40,000/ on his treatment but in his crossexamination he stated that he had not filed any bills and denied that he had not incurred Rs. 40,000/ on treatment. As per the MLC Ex. PW1/4 the petitioner was taken to hospital with the history of road traffic accident. Thus considering that as he suffered injuries he must have spent on his treatment. I thus award Rs. 5,000/ 8 towards medicines and medical treatment .
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
16. It is well settled that a particular amount cannot be fixed for pain and suffering and it varies from case to case. However, judicial notice can be taken of the fact that since the petitioner sustained injuries he must have suffered pain and suffering. Considering that petitioner suffered injuries in the accident I award Rs. 5,000/ for pain and suffering and loss of amenities of life.
CONVEYANCE AND SPECIAL DIET
17. Petitioner did not file any proof of amount spent on conveyance and special diet. However considering that the petitioner suffered injuries in the accident he must have spent on conveyance and special diet. I thus, award Rs. 2,500/ towards conveyance and special diet. LOSS OF INCOME
18. As regards loss of earning petitioner deposed that he was 49 years of age at the time of accident working as driver and was earning Rs. 10,000/ per month but he had not filed any documentary proof of income. Thus, as no proof of income has been filed, the income of the petitioner has to be assessed on the basis of chart available in the Minimum Wages Act. On the date of accident minimum wages for a skilled worker was Rs. 4,358/. In his crossexamination petitioner stated that he had not filed 9 any document regarding his leg been plastered and he was hospitalised for one day and he had not filed any other record of his hospitalisation. Considering that the petitioner did not file the record of treatment, I award one month of wages for loss of income. Thus I grant Rs. 4,358/ which may be rounded as of Rs. 4,360/ towards loss of income. The total compensation is assessed as under:
Medicines and Medical treatment : Rs. 5,000/
Pain and suffering loss of
Amenities of life : Rs. 5,000/
Conveyance and Special Diet : Rs. 2,500/
Loss of Income : Rs. 4,360/
TOTAL : Rs. 16,860/
RELIEF
19.I thus award Rs. 16,860/ (Rs. Sixteen Thousand Eight Hundred Sixty only) with interest at the rate of 9% per annum in view of judgment of Hon'ble Supreme Court in M. C. D Vs. Asscn., Victims of Uphaar tragedy dated 13.10.2011 from the date of filing of petition till its realisation against the respondents in favour of the petitioner. The liability of both the respondents being joint and several. The entire amount be released to petitioner.
20.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two 10 sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week.
APPORTIONMENT OF LIABILITY:
21.Respondent no. 3 had examined one witness to prove the violation of permit conditions. R3W1 stated that despite service of notice under Order 12 Rule 8 CPC which was proved as Ex.R3W1/2 and its postal receipt are Ex.R3W1/3 but the insured did not produce the copy permit as such since respondent no. 3 succeeded in proving violation of terms and conditions of policy. For the foregoing reasons respondent no. 2 is held liable. However as regards the payment of award amount by insurance company even in cases where insurance proves its defence it has been held in National Insurance Company Limited Vs. Swaran Singh, AIR 2004 SC 1531 as follows: "Motor Vehicles Act, 1988, Sections 149(2)(a)(ii) and proviso to Sub sections (4) and (5) - Third party Claims Liability of insurance company to satisfy Breach of policy - Defences for insurer - Even if the Tribunal arrives at a conclusion that the insurer 11 has proved its defence u/s 149(2) , still it can direct the insurer to pay the amount of compensation to third party with a right to recover it from the insured."
22.Respondent no. 2 being the owner is directed to deposit the award amount within 30 days with interest at the rate of 9% per annum from the date of filing of petition till its realisation including interim award if any already passed. In case of any delay, they are liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
An attested copy of the award be given to the parties free of cost. File be consigned to Record Room.
Announced in the open court.
On 27.4.2012 (POONAM CHAUDHARY)
JUDGE: MACT1 : NEW DELHI